In an
action, inter alia, to recover damages for personal injuries,
etc., the defendant City of New York appeals, as limited by
its brief, from stated portions of an order of the Supreme
Court, Richmond County (Aliotta, J.), dated June 25, 2015,
which, inter alia, denied its motion to enforce a stipulation
of settlement dated March 27, 2015, and the plaintiffs
cross-appeal, as limited by their brief, from so much of the
same order as granted the motion of the defendant John S.
Gannone for summary judgment dismissing the complaint insofar
as asserted against him and that branch of the cross motion
of the defendant Winrock Plumbing, Inc., which was for
summary judgment dismissing the complaint insofar as asserted
against it.

ORDERED
that the order is modified, on the law, by deleting the
provision thereof denying the motion of the defendant City of
New York to enforce the stipulation of settlement dated March
27, 2015, and substituting therefor a provision granting the
motion; as so modified, the order is affirmed insofar as
appealed and cross-appealed from, with one bill of costs to
the defendants appearing separately and filing separate
briefs payable by the plaintiffs.

The
plaintiff Joseph DeBlasi (hereinafter the injured plaintiff)
allegedly was injured when he tripped and fell over a crack
in the sidewalk abutting 604 Lamont Avenue in Richmond
County. The injured plaintiff, and his wife suing
derivatively, commenced this action, inter alia, to recover
damages for his injuries against the defendant John S.
Gannone, who owned and occupied the subject premises, the
defendant City of New York, and the defendant Winrock
Plumbing, Inc. (hereinafter Winrock), a contractor that
performed work on a portion of the sidewalk. After discovery,
Gannone moved for summary judgment dismissing the complaint
insofar as asserted against him, and Winrock cross-moved,
inter alia, for summary judgment dismissing the complaint
insofar as asserted against it.

In
March 2015, the plaintiffs' attorney and the City's
attorney agreed to settle the matter with respect to the City
for $35, 000. A stipulation of settlement was prepared and
signed by the attorneys on March 27, 2015. Subsequently, the
plaintiffs' attorney sought to renege on the stipulation
on the ground that he had failed to inform the plaintiffs
that the award would be reduced by a worker's
compensation lien. The City moved to enforce the stipulation
of settlement. In an order dated June 25, 2015, the Supreme
Court, inter alia, denied the City's motion, granted
Gannone's motion for summary judgment dismissing the
complaint insofar as asserted against him, and granted that
branch of Winrock's cross motion which was for summary
judgment dismissing the complaint insofar as asserted against
it. The City appeals, and the plaintiffs cross-appeal.

The
Supreme Court properly granted Gannone's motion for
summary judgment dismissing the complaint insofar as asserted
against him. Administrative Code of the City of New York
§ 7-210, which shifted tort liability for injuries
resulting from defective sidewalks from the City to the
abutting property owners, does "not apply to one-, two-
or three-family residential real property that is (i) in
whole or in part, owner occupied, and (ii) used exclusively
for residential purposes" (Administrative Code §
7-210[b]; see Meyer v City of New York, 114 A.D.3d
734, 734). Gannone demonstrated, prima facie, that he was
exempt from liability by establishing that the subject
dwelling was a one-family, owner-occupied residence (see
DeSilvio v Lin Zheng,150 A.D.3d 679, 680; Boorstein
v 1261 48th St. Condominium,96 A.D.3d 703, 703-704).
Gannone also established, prima facie, that he did not
perform any work on the sidewalk prior to the incident, and
that he did not create the alleged defect (see Ippolito v
Innamorato,136 A.D.3d 624, 625; Angulo v City of
New York,5 A.D.3d 707). In opposition, the plaintiffs
failed to raise a triable issue of fact (see Alvarez v
Prospect Hosp.,68 N.Y.2d 320, 324). Contrary to the
plaintiffs' contention, Gannone's use of the dwelling
to store his son's landscaping equipment was merely
incidental to the residential use of the property (see
Koronkevich v Dembitzer,147 A.D.3d 916; Coogan v
City of New York,73 A.D.3d 613). Moreover, we do not
find that the pictures contained in the record depict repairs
that were made to the sidewalk.

The
Supreme Court also properly granted that branch of
Winrock's cross motion which was for summary judgment
dismissing the complaint insofar as asserted against it.
Although a contractor may be liable for an affirmative act of
negligence which results in the creation of a dangerous
condition upon a public street or sidewalk (see Huerta v
2147 Second Ave., LLC,129 A.D.3d 668), Winrock
established, prima facie, that it did not create or cause the
alleged dangerous condition. Approximately six years prior to
the accident, Winrock performed work near or about where the
injured plaintiff fell. It received no complaints, and its
work was approved by the City (see Zorin v City of New
York,137 A.D.3d 1116; Santelises v Town of
Huntington,124 A.D.3d 863, 865). In opposition, no
triable issue of fact was raised.

The
Supreme Court, however, erred in denying the City's
motion to enforce the stipulation of settlement dated March
27, 2015. "Stipulations of settlement between parties
are binding contracts... and, as such, they are favored and
not lightly cast aside" (HSBC Bank USA, N.A. v
Wielgus,131 A.D.3d 510, 510 [internal quotation marks
omitted]). "The parties to a stipulation may have it set
aside only for reasons which would allow a contract to be set
aside, such as fraud, collusion, mistake, or accident"
(Bailey v New York City Tr. Auth.,196 A.D.2d 854,
854). Here, the plaintiffs failed to show that the
stipulation of settlement was the product of fraud,
collusion, mistake, or accident. Nor was there any showing
that the plaintiffs' attorney did not have authority to
enter into the stipulation of settlement (see Ortiz v
Brooks,135 A.D.3d 921).

In
light of our determination, we need not reach the ...

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